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Pepe-Frazier v. State

Court of Appeals of Georgia

March 18, 2015

PEPE-FRAZIER
v.
THE STATE

Page 655

Cert. applied for.

Pimping, etc. Fulton Superior Court. Before Judge Lee.

The Pate Law Firm, Page A. Pate, Jess B. Johnson, for appellant.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Sheila E. Gallow, Assistant District Attorneys, for appellee.

DILLARD, Judge. Doyle, P. J., and Miller, J., concur.

OPINION

Page 656

Dillard, Judge.

Following a trial by jury, David Pepe-Frazier was convicted of trafficking of persons for sexual servitude, pimping, aggravated child molestation, enticing a child for indecent purposes, and contributing to the delinquency of a minor. On appeal from these convictions, Pepe-Frazier argues that (1) the trial court erred by admitting prior consistent statements of the victim, (2) the trial court erred by qualifying two expert witnesses, and (3) he received ineffective assistance in various regards. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury's guilty verdict,[1] the record reflects that on April 18, 2009, the then 14-year-old victim encountered Pepe-Frazier when he offered her a ride. The victim was initially hesitant to accept Pepe-Frazier's offer, but upon noticing that his vehicle was occupied with another male and two young females, she agreed to do so. Pepe-Frazier then drove the group to a house, where the victim spoke at length with the other male, who she came to know as " Swatt" (and who was later identified as Harvey White), before engaging in sexual intercourse with him.

During this time, Pepe-Frazier left the house with the two other females, but upon their return, the victim noticed that one of the females carried a substantial amount of cash and wore " very short shorts." Pepe-Frazier then informed the victim that he knew she had engaged in sexual intercourse with White and advised her that she " might as well get paid for it" (rather than having sex with men for free). The victim remained at the house for several days and eventually agreed to work as a prostitute for Pepe-Frazier.

Thereafter, over the course of several weeks, either Pepe-Frazier or the home's female owner would drive the victim and other females, including Pepe-Frazier's girlfriend (who assisted him in training new prostitutes), to areas where she and the other prostitutes would seek out multiple men with whom to engage in sexual intercourse in exchange for money. And while Pepe-Frazier initially allowed the victim to keep half of what she earned, within days he began taking all of the money she made as a prostitute.

On one occasion, while the victim lived in the house with Pepe-Frazier and the other prostitutes, Pepe-Frazier made the victim perform oral sex on him while he was simultaneously engaged in sexual intercourse with his girlfriend. And although the victim soon [331 Ga.App. 264] decided that she no longer wished to be a prostitute, she was afraid of Pepe-Frazier after he slapped her when she tried to remove his hand from her mouth and, in another incident, choked and slapped her after a man called her cell phone. Additionally, approximately one week after the victim's arrival, she witnessed Pepe-Frazier pull a gun on another prostitute who attempted to leave the house. The victim also witnessed Pepe-Frazier

Page 657

punch the woman who owned the house in the stomach and saw him engage in several physical altercations with his girlfriend.

Nevertheless, despite her fear of Pepe-Frazier, the victim eventually made contact with her sister and informed her that she was scared and wished to come home. And shortly thereafter, as the victim was being driven to an area where she regularly prostituted, she text-messaged her family with various landmarks as she passed them, and she then waited in the restroom of a fast-food restaurant while her family notified law enforcement of her location. The vehicle she was driven in was pulled over a short distance down the road based on the victim's description, and she later positively identified Pepe-Frazier in a photographic lineup.

At Pepe-Frazier's trial, in addition to the victim's testimony and that of another former prostitute who worked alongside her, the State also presented testimony from White that, inter alia, he was with Pepe-Frazier when the victim was picked up; Pepe-Frazier convinced the victim to work as a prostitute; Pepe-Frazier's prostitute girlfriend assisted in training new recruits; he saw the victim summoned to Pepe-Frazier's room while Pepe-Frazier was engaged in sexual intercourse with his girlfriend; and he saw Pepe-Frazier slap the victim " real hard" when she used her cell phone. Pepe-Frazier was convicted of all the offenses enumerated supra, and this appeal follows.

At the outset, we note that on appeal from a criminal conviction, the defendant is " no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict." [2] With this guiding principle in mind, we turn now to Pepe-Frazier's enumerations of error.

[331 Ga.App. 265] 1. First, Pepe-Frazier contends that the trial court erred by admitting a prior consistent statement by the victim that was pure hearsay and bolstered her credibility. Specifically, Pepe-Frazier argues that the trial court erred by overruling an objection to testimony by a law-enforcement officer that the victim said Pepe-Frazier slapped her after she removed his hand from her mouth. We agree that the trial court's admission of this testimony was erroneous; however, this error was harmless.

First, we note that a witness's prior consistent statement is admissible when " (1) the veracity of a witness's trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination." [3] And a witness's veracity is placed in issue so as to permit the introduction of a prior consistent statement if " affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination." [4] Additionally, to be admissible to refute

Page 658

an allegation of fabrication, " the prior statement must predate the alleged fabrication, influence, or motive." [5]

In the case sub judice, there was no affirmative charge of recent fabrication, and the State elicited the specific testimony on direct examination of the law-enforcement officer. Thus, the trial court erred in admitting the officer's testimony regarding the victim's prior consistent statement.[6]

Nevertheless, the admission of the aforementioned testimony does not require reversal, which, in this context, happens only " if it appears likely that the hearsay contributed to the guilty verdict." [7] Here, that is not the case. First, the complained-of hearsay related to [331 Ga.App. 266] a charge of battery for which Pepe-Frazier was acquitted.[8] And second, the testimony was cumulative of other admissible evidence that the victim was slapped by Pepe-Frazier. Indeed, another former prostitute testified to having personal knowledge that Pepe-Frazier slapped the victim. Accordingly, it is unlikely that the erroneously admitted hearsay contributed to the verdict.[9]

2. Next, Pepe-Frazier contends that the trial court erred by qualifying expert witnesses in the areas of commercial sexual exploitation of children and in pimping culture. Again, we disagree.

The State presented the testimony of two witnesses who the trial court qualified, over Pepe-Frazier's objections, as experts in the areas of commercial sexual exploitation of children and in pimping culture, terminology, and relationship dynamics between pimps and prostitutes, respectively. Pepe-Frazier contends that the court's qualification of both experts was in error.

In order to qualify as an expert in a criminal proceeding in Georgia, generally all that was required under the former Evidence Code[10] was that " a person be knowledgeable in a particular matter; his special knowledge may be derived from experience as well as study, and formal education in the subject is not a prerequisite for expert status." [11] And

Page 659

a decision as to whether a witness possesses such learning or experience to qualify as an expert witness " lies [331 Ga.App. 267] within the sound discretion of the trial court and will not be disturbed unless manifestly abused." [12]

Here, the witness qualified as an expert in commercial sexual exploitation of children testified that she was the director of forensic services at the Georgia Center for Child Advocacy; had conducted over 1,000 forensic interviews; had been qualified as a forensic-interview expert approximately 46 times; had served on a statewide task-force that addressed concerns regarding commercial sexual exploitation in Georgia; had served on focus groups for the National Center for Missing and Exploited Children to enable national forensic interview protocols for children; had undergone training for mental-health providers in the area of commercial sexual exploitation of children and become a facilitator to train others on the topic; and had attended symposiums and seminars with instruction from the Federal Bureau of Investigation on how to work with sexually exploited children.

As for the witness qualified as an expert in pimping culture, terminology, and relationship dynamics between pimps and prostitutes, she testified that she was the director of forensic services for Fulton County and had previously served as the executive clinical director for a child-advocacy center; had previously worked as the program manager at the Georgia Center for Children, where she dealt with many victims of child-sexual exploitation; had performed more than 2,000 clinical interviews, many with victims of teenage prostitution; worked with various law-enforcement agencies in Georgia to train them in understanding cycles of abuse regarding sexual exploitation; had trained with the National Center for Missing and Exploited Children to study the effects of sexual exploitation, exploring the dynamics between and demeanor of pimps and exploited teenagers; and had studied pimping and prostitution by extensive review of scholarly literature on the subject.

Based on this testimony by both witnesses, we conclude that the trial court did not abuse its discretion in qualifying them as experts in their respective areas.[13] And the subjects about which these witnesses [331 Ga.App. 268] testified--e.g., the reasons why teenage prostitutes do not run away from their pimps, prostitution terminology, and scare tactics frequently used by pimps upon prostitutes--are certainly outside of the ken of the average juror.[14]

Page 660

Furthermore, even assuming arguendo that the trial court erred in permitting the experts' testimony, given the testimony from the victim, White, and another former prostitute implicating Pepe-Frazier in, inter alia, trafficking persons for sexual servitude and pimping, it is highly probable that any such error did not contribute to the jury's verdict.[15]

3. Finally, Pepe-Frazier contends that he received ineffective assistance of counsel in numerous regards. Specifically, Pepe-Frazier argues that his counsel was ineffective by failing to (1) object to the victim's prior consistent statements, (2) request a jury charge on the lesser-included offense of child molestation, (3) object to the imposition of a life sentence for aggravated child molestation when such sentence amounts to " cruel and unusual punishment" within the meaning of the United States and Georgia Constitutions,[16] and (4) object to the denial of his right to allocution during sentencing. Once again, we disagree.

[331 Ga.App. 269] Before addressing Pepe-Frazier's contentions, we note that, in general, when a defendant claims that his trial counsel was ineffective, he has the burden of establishing that " (1) his attorney's representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [17] And when a trial court determines, as the court below did here, that a defendant did not receive ineffective assistance, we will affirm that decision on appeal unless it is clearly erroneous.[18] With these guiding principles in mind, we turn now to Pepe-Frazier's specific arguments.

(a) Failure to object to inadmissible hearsay and prior consistent statements.

Pepe-Frazier argues that his trial counsel rendered ineffective assistance by failing to object to inadmissible hearsay and testimony regarding the victim's prior consistent statements regarding the sexual acts she performed with him and her activities working for him as a prostitute.

First, Pepe-Frazier takes issue with testimony from a physician's assistant who examined the victim and testified as to the victim's description of the oral and vaginal sex acts she performed with clients and the fact that all but one of her clients wore a condom. But defense counsel did not render ineffective assistance by failing to object to this testimony because any objection would have lacked merit when these statements were made for the purpose of receiving a medical diagnosis or treatment.[19] Pepe-Frazier also takes issue with his trial counsel's failure to object to the physician's assistant's

Page 661

testimony as to what the victim's mother told her (i.e., that " someone picked [the victim] up, kept her until yesterday and that she said they were soliciting her for sex" ), but he cannot establish that he was [331 Ga.App. 270] prejudiced by this testimony when it was cumulative of other admissible evidence establishing the same facts (e.g., White's testimony that the victim was picked up by Pepe-Frazier and worked as a prostitute, the testimony of the other former prostitute who worked with the victim, and the victim's statements to the physician's assistant for purposes of receiving medical treatment).[20]

Second, Pepe-Frazier asserts that his trial counsel was ineffective by failing to object to testimony by law-enforcement officers as to what the victim reported regarding his acts of picking her up, taking her to his residence, acting as her pimp, engaging in sexual intercourse with her, and slapping her when she used her cell phone. But again, Pepe-Frazier cannot establish that he was prejudiced by counsel's failure to object to this testimony when it was cumulative of other admissible evidence (e.g., White's eyewitness testimony to some of these same incidents, the testimony of the other former prostitute as to what she and the victim did while staying with Pepe-Frazier).[21]

(b) Failure to request an instruction on the lesser-included offense of child molestation.

Next, Pepe-Frazier argues that his trial counsel rendered ineffective assistance by failing to request an instruction on the lesser-included offense of child molestation to the charged offense of aggravated child molestation.

Pepe-Frazier was indicted for and convicted of the offense of aggravated child molestation, which occurs when a person " commits an offense of child molestation which act ... involves an act of sodomy." [22] And the State established the commission of this offense by the victim's testimony that, on one occasion, both she and Pepe-Frazier's girlfriend simultaneously performed oral sex upon him while at the house. Nevertheless, Pepe-Frazier argues on appeal that his counsel should have requested an instruction on the lesser-included offense of child molestation when there was evidence that he discussed having sexual intercourse with the victim on the day she [331 Ga.App. 271] arrived and that he and the victim engaged in vaginal intercourse.[23] He also argues that his trial counsel's theory of the case--i.e., that the victim was lying about him to escape punishment for running away--did not amount to an " all or nothing" defense such that the failure to request an instruction on the lesser-included offense was strategic.[24]

Despite Pepe-Frazier's arguments to the contrary, the fact that there was evidence of

Page 662

other incidents between Pepe-Frazier and the victim that occurred over the roughly three-week period she lived with him and worked as a prostitute (that could have given rise to additional charges of child molestation) cannot mean that his counsel was ineffective in failing to request a charge on the lesser-included offense based on a specific incident for which there was no evidence that anything other than aggravated child molestation occurred.[25] Indeed, we have previously held that " such failure cannot support a claim of ineffective assistance [when] as here the evidence does not reasonably raise the issue that [the defendant] may be guilty only of the lesser crime." [26] Furthermore, counsel's testimony as to his theory of the case--i.e., that the victim was lying about Pepe-Frazier to avoid punishment for running away-- did amount to an " all or nothing" defense.[27] Accordingly, Pepe-Frazier has failed to establish that he received ineffective assistance of counsel in this regard.

[331 Ga.App. 272] (c) Failure to object to the sentence for aggravated child molestation.

Pepe-Frazier contends that his trial counsel rendered ineffective assistance by failing to challenge his sentence for aggravated child molestation, when the life sentence he received for this offense amounted to " cruel and unusual punishment" within the meaning of the United States and Georgia Constitutions.

To begin with, we note that Pepe-Frazier has waived any direct constitutional challenge to his sentence by failing to raise such a challenge at the first opportunity (i.e., the sentencing hearing),[28] which is what gives rise to his current assertion that trial counsel rendered ineffective assistance by failing to make such a challenge.[29]

OCGA § 16-6-4 provides that, except in limited circumstances not applicable in this case, " a person convicted of the offense of aggravated child molestation shall be punished by imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life ... ." [30] As previously noted, Pepe-Frazier contends that the trial court's imposition

Page 663

of a life sentence for his commission of one instance of oral sex with the 14-year-old victim constituted " cruel and unusual punishment."

As our Supreme Court has held,

[o]utside the context of the death penalty, of extreme cases such as life imprisonment as punishment for overtime parking, and ... of life without parole for a juvenile convicted of non-homicide crimes, successful challenges to the proportionality of legislatively mandated terms of imprisonment should be " exceedingly rare." [31]

And when, as here, no categorical Eighth Amendment restriction applies, we must " determine whether a sentence for a term of years [331 Ga.App. 273] is grossly disproportionate for a particular defendant's crime." [32]

First, we compare the gravity of the offense and the severity of the sentence.[33] And if the threshold comparison leads to an inference of gross disproportionality, this Court will then " compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions." [34] In this respect, our Supreme Court has emphasized that " it is the rare case in which the threshold inference of gross disproportionality will be met and a rarer case still in which that threshold inference stands after further scrutiny." [35] Additionally, a sentence which is not otherwise cruel and unusual " does not become so simply because it is 'mandatory.' " [36] Indeed, legislative enactments constitute " the clearest and most objective evidence of how contemporary society views a particular punishment." [37] Thus, the issue of punishment is " one for the legislative branch, and legislative discretion is deferred to unless the sentence imposed shocks the conscience." [38]

In the case sub judice, the trial court sentenced Pepe-Frazier to life for his commission of aggravated child molestation, which was " not a passive felony." [39] Indeed, the General Assembly has declared that " sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety." [40] And here, the evidence established that, while engaged in sexual intercourse with his girlfriend, Pepe-Frazier summoned the 14-year-old victim, who was working alongside other young women as a prostitute on his behalf, to his room and placed his penis in her mouth while his testicles were placed in his girlfriend's mouth. Under these circumstances, Pepe-Frazier's sentence does not raise a threshold inference of gross disproportionality.[41] Accordingly,

Page 664

he has failed to show either [331 Ga.App. 274] deficient performance by trial counsel or a reasonable probability that the outcome would have been different if the constitutional challenges had been timely raised, and his ineffective assistance claim is therefore without merit.[42]

(d) Failure to object to the denial of the right to allocution.

Lastly, Pepe-Frazier contends that his trial counsel rendered ineffective assistance by failing to object to the trial court's denial of his right to allocution during sentencing. Yet again, we disagree.

During sentencing, defense counsel made a brief statement on his client's behalf, describing the defendant's difficult life and upbringing, before Pepe-Frazier directly addressed the trial court by informing it of the time he had already served with regard to the charges. Then, as the trial court prepared to announce its sentence, Pepe-Frazier attempted to interrupt the court but was prohibited from doing so when the court said, " It's my turn, sir." Based on this exchange, Pepe-Frazier contends that his trial counsel was ineffective in failing to object to the trial court's denial of his right to allocution.

Under OCGA § 17-10-2, during a presentence hearing, the judge shall " hear argument by the accused or the accused's counsel and the prosecuting attorney, as provided by law, regarding the punishment to be imposed." [43] Here, because trial counsel spoke on his client's behalf (and Pepe-Frazier even made a brief statement), the statute was satisfied and he was not denied his right to allocution.[44] Accordingly, any objection by Pepe-Frazier's trial counsel would have lacked merit and, thus, counsel was not ineffective.[45]

[331 Ga.App. 275] Pepe-Frazier also seems to argue that his defense counsel rendered ineffective assistance by failing to request a presentence investigation or present mitigating evidence, pointing to counsel's testimony at the motion-for-new-trial hearing in which he conceded that he " probably" should have done those things. However, Pepe-Frazier fails to identify exactly what an investigation would have shown or how it would have changed the sentence he ultimately received. Thus, he cannot establish that he received ineffective assistance of counsel in this regard because he has not shown that he was prejudiced.[46]

Accordingly, for all of the foregoing reasons, we affirm Pepe-Frazier's convictions.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.


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